Full Comment - March 30, 2026


The Supreme Court will just make stuff up to subvert the notwithstanding clause

Hosted by
Brian Lilley Anthony Furey Tristin Hopper
Mentioned
Doug Ford Rosalie Abella Bruce Pardee Brexit Guild Michelle Pfeiffer Taylor Sheridan Sheila Martin Kurt Russell Full Comment Kevin Libin Bryce Hall Bissonnette Madison Chaloui Chiloui Ginger Nadeau
What happened to the Mark Carney who promised to make things better？ Mark Carney is about to get hammered left and right by populism

Episode Stats


Length

48 minutes

Words per minute

164.76

Word count

7,948

Sentence count

417

Harmful content

Misogyny

1

sentences flagged

Hate speech

4

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

The Supreme Court spent last week hearing about Bill 21 in Quebec. This is an abhorrent law, one that tries to have the state decide what kind of religious garb people can wear in the public service. But the real issue before the Supreme Court was the Notwithstanding Clause, that portion of the Charter that was part of the Grand Bargain that saw it adopted back in 1981, before the constitution was patriated in 1982. And yet since then, a large section of Canada s Laurentian elite has been saying, hmm, the notwithstanding clause was a mistake, it has to go.

Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
Hosts, guests, and mentioned names generated with spaCy (en_core_web_sm), reconciled against Wikidata.
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00:00:44 The Supreme Court spent last week hearing about Bill 21 in Quebec.
00:00:51 This is an abhorrent law, one that tries to have the state decide what kind of religious garb people can wear in the public service.
00:00:59 It's not a law that I support, or many outside of Quebec do, but the real issue before the Supreme Court was the Notwithstanding Clause.
00:01:07 Section 33 of the Charter, that portion of the Charter of Rights and Freedoms that was part of the basis for the grand bargain that saw it adopted back in 1981,
00:01:17 before the constitution was patriated in 1982. And yet since then, we've had a large section of
00:01:25 Canada's Laurentian elite saying, hmm, the notwithstanding clause was a mistake, it has to go.
00:01:30 And that was essentially the question before the Supreme Court during the Bill 21 case. Should the
00:01:36 Supreme Court get rid of Section 33? Should they try and curtail it? Are there ways that the courts
00:01:42 could intervene and say that the Constitution just isn't quite right.
00:01:47 Hello and welcome to the Full Comment Podcast.
00:01:49 My name is Brian Lilly, your host, and today we're going to delve into the subject with
00:01:53 a man who knows very much about the Constitution and the Notwithstanding Clause.
00:01:57 Bruce Pardy is a law professor at Queen's University.
00:02:00 He's also affiliated with the Fraser Institute, McDonnell-Laurier, and other organizations
00:02:05 across the country.
00:02:06 He's written extensively on this.
00:02:08 And Bruce, before I come to you, I want to read a quote from you from one of your
00:02:12 pieces for the Fraser Institute, you said the dispute over the notwithstanding clause reflects
00:02:17 two bad choices, be ruled by courts or be ruled by legislatures. In Canada, neither institution
00:02:25 tends to protect individual liberties, notwithstanding rights, the state is still supreme.
00:02:31 Welcome. Thanks for having me, Brian. Good to see you. Would you agree that this case before
00:02:38 the Supreme Court last week wasn't really about Bill 21, it was about the notwithstanding clause?
00:02:42 Well, that's certainly the way the dialogue in the courtroom turned out. The federal government is an intervener in this case, but the focus was on the submissions that it was making, encouraging the court, as you described, to place limits on the province's ability to use the notwithstanding clause to do this kind of thing.
00:03:03 So my sense is that you're not a huge fan of the notwithstanding clause, but you're also not a huge fan of judicial supremacy.
00:03:12 Would that be right?
00:03:13 I think that's fair.
00:03:13 I mean, in the contest between whether or not the notwithstanding clause should be honored as part of the Constitution, I'm squarely on the side of the people who say, look, that's what the text says.
00:03:24 That's the way it should be.
00:03:26 So I think that's fair enough.
00:03:27 On the other hand, the Notwithstanding Clause is not a panacea either because it gives legislatures carte blanche to do whatever they want, notwithstanding rights.
00:03:36 So it's a bit of a dilemma, and as the quote that you read alluded to, it's really a question of two bad choices.
00:03:45 Do you give ultimate power to the courts, which has not turned out well, or do you give ultimate power to legislatures, which is the democratic way, but legislatures do a lot of bad things too?
00:03:54 So I used to rail against the notwithstanding clause. I'd say, well, why should legislatures be able to abrogate my rights or anybody else's rights? And then you look and you say, so notwithstanding clause is section 33 of the charter.
00:04:13 And then you look at Section 1, which essentially says that, well, the courts can overrule your rights if they deem by tests that they have invented to be justified in free and democratic society.
00:04:26 And I said, well, wait a minute.
00:04:28 Okay, then I thought, all right, well, we'll get rid of Section 33 if we get rid of Section 1 as well. 0.65
00:04:34 You know, just be an absolute purist.
00:04:35 But I'm not sure that that works, especially when you see how often our courts today ignore precedent, will overturn just about anything, and increasingly, in my view, make very political decisions.
00:04:49 So I've reluctantly come around to, no, the notwithstanding clause has to be there because of the nature of the court today, which is not why it was put there, by the way, and we can get into that in a bit.
00:05:03 But today, I would say the defense of it is the courts have lost all sense of their role in society and have decided that they are the supreme beings.
00:05:14 It is the belief of the Supreme Court over a long period of time that its job is to decide social policy.
00:05:24 Sometimes the judges say it out loud.
00:05:26 And if you are in a country in which the courts believe that that is their role, then it would be a very good thing to have something like the notwithstanding clause to say, no, no, when legislatures are willing to say so, they are going to have the final word.
00:05:45 And we are not going to be ruled by a star chamber of judges appointed to age 75 to rule over us.
00:05:52 But that is what we've come to in this country.
00:05:56 And you can see the results.
00:05:58 The results are not good.
00:05:59 So I have no sort of objection to having the words of Section 33 honoured.
00:06:07 It was part of the grand bargain.
00:06:09 And as you allude to, it is a hypocritical argument to say that Section 33 is illegitimate,
00:06:19 but Section 1 is not
00:06:21 because both of those sections
00:06:23 represent a limitation on rights.
00:06:27 Section 1 gives the courts
00:06:28 the ability to decide
00:06:29 when rights should be placed aside
00:06:31 and Section 33 gives the legislatures
00:06:34 that same opportunity.
00:06:37 And those people who are arguing
00:06:38 against Section 33
00:06:39 really are simply saying
00:06:41 that they want to be ruled over
00:06:42 by the courts
00:06:43 and not by the messy, dirty legislatures.
00:06:50 There was a decision back in 2005, the Chaloui decision.
00:06:54 I'm sure you're well familiar with it.
00:06:56 It was a man from Quebec who was having trouble getting access to health care.
00:07:01 The provincial health care system in Quebec was so slow.
00:07:05 It was impacting his health.
00:07:06 He took it to court and said, you are impacting my Section 7 charter rights to life, liberty, and security of the person.
00:07:15 And he challenged the fact that he could not legally buy access to private health care.
00:07:23 Now, that's one where the courts turned themselves into a pretzel to agree with Mr. Chaloui, but only using the Quebec Charter and not the Canadian Charter, because it was, you said, courts increasingly want to decide social policy.
00:07:40 I similarly watched a group of parents who wanted to challenge Quebec's language law surrounding education, that if you don't have the right to go to an English school, meaning if you are not an Anglophone born and bred and raised in Canada, maybe you're an immigrant from somewhere else, but you only speak English, you must go to school in French.
00:08:08 And even some French parents joined that charter challenge. And the courts turned themselves into pretzels again, saying, well, yes, this is a violation of the charter, but under Section 1, we're going to allow it for the greater good of society.
00:08:22 that really is decided in both cases that is deciding social policy because they turned down
00:08:28 a what they said was a violation of rights in terms of the parents and education and said it
00:08:35 gets to stand for the greater good of Quebec and then the question of Chiloui they said well it's
00:08:41 you know we're going to overturn it but only for Quebec and so Quebecers have rights that I don't 1.00
00:08:47 as a resident of Ontario.
00:08:50 Yes, and in fact, there was a more recent case out of BC
00:08:54 that basically made the same health care argument,
00:08:57 and the Supreme Court turned that one down.
00:08:59 So it is true that that is an example,
00:09:02 and there are many examples of the court deciding on its own
00:09:06 what the best social policy ought to be.
00:09:09 The list is endless of the situations in which that has occurred.
00:09:13 However, I also think we have to keep in mind
00:09:16 this unfortunate reality which is that a lot of charter rights are very bluntly stated they're
00:09:22 not detailed at all they're just very short statements and the architecture of the charter
00:09:27 is such that it gives the court the the job of interpreting what the words mean so you know we
00:09:32 all have freedom of speech well what does freedom of speech mean everybody knows no no no no no we
00:09:38 don't have freedom of speech i've been arguing with liberals about this for 20 years we have
00:09:42 freedom of expression which apparently is different and doesn't include speech anytime they want to
00:09:49 curtail my speech well fair enough but my point was that there's going to be a line in there
00:09:54 somewhere that the charter itself does not identify and we've given to the court the job of
00:09:58 telling us all where the line is and that line seems to move and it's not always decided on a
00:10:05 on a what it what appears to be a principled basis but nevertheless we in a sense we are
00:10:10 getting what we asked for by approving a charter that gives to the court the job of deciding what
00:10:16 all these bluntly put rights mean. We have given them the job, the power to do this. They've taken
00:10:25 up that power with enthusiasm. And now, you know, we don't always approve. I don't approve a lot of
00:10:32 what the Supreme Court does. But in other words, we're stuck still here with two bad choices. And
00:10:38 even in those systems like the American one, the American Bill of Rights has neither a Section 1
00:10:45 Reasonable Limits Clause nor a Section 33. And you would think, well, because it has neither one of
00:10:51 those two things, therefore the rights are absolute. And that's not true. Every statement
00:10:56 of a right in a constitution has some kind of inherent limits, internal limits, that the court
00:11:01 has to describe, you know, where they are. Even in the U.S., freedom of speech, freedom of expression
00:11:07 is not absolute. There is a line there, and the line is drawn by the courts. So we are stuck with
00:11:12 an architectural problem, and our Constitution relies on the courts to do these things, and
00:11:17 that system is turning out to be flawed. And for my money, we need a different kind of model
00:11:23 of Constitution. Now, that's not going to happen anytime soon. But that is the lesson in this
00:11:29 experience, which is these two choices are not good choices. We need a third choice, and we're
00:11:34 not getting there without some major change. Well, I think we may have a new constitution
00:11:39 if the court goes the way I fear they will, but we'll get to that in a moment. And I want to ask
00:11:43 you about the US versus Canada and the fact that they don't have the Section 1 and Section 33. But
00:11:48 before we get there, was Canada and the rights of Canadians better served in the pre-charter era
00:11:57 or the post-charter era? Loaded question, I know, but in both instances, it's not as if rights did
00:12:05 not exist. There was the Diefenbaker's Bill of Rights in, I believe, 1962. But even before that,
00:12:12 rights were recognized by the court. This goes back centuries. So were they better before or
00:12:19 after? Is it just different? How would you describe the protection of individual liberties
00:12:24 in the courts, pre-charter, post-charter?
00:12:27 Yeah, it's a fair and very good question.
00:12:29 I think on balance, you might come out and say
00:12:32 that it was probably better before.
00:12:36 But not because of what the Constitution said
00:12:41 or even the Bill of Rights.
00:12:42 The Bill of Rights is merely a statute,
00:12:44 a federal statute that applied only to federal areas
00:12:47 of jurisdiction, and it was largely ineffectual
00:12:49 in many ways.
00:12:51 So it was not a panacea.
00:12:52 And to the extent that rights were honored pre-charter, they were not honored because of something the Constitution or the law said.
00:13:02 It was primarily because of the culture of the place, the culture of the courts, the attitude of restraint that the courts brought to it.
00:13:10 There was nothing that limited in the law legislature's ability to legislate away your rights.
00:13:16 And so culture in the legislative realm as well, legislatures who just didn't want to take the same kind of liberties away that they seem to want to in the present day.
00:13:30 So this is largely due to culture as opposed to content.
00:13:34 The fact of the matter is it was the charter that placed constitutional limits on the abilities of legislatures to legislate your rights away.
00:13:43 Legislatures could do anything, essentially, more or less, in terms of overriding your property rights, your speech, your, you know, whatever rights you can think of that might have existed in the common law.
00:13:57 Legislatures had the final call to decide that those would not apply anymore.
00:14:02 And that is one thing that the charter claimed to change.
00:14:06 That is, here are some limits.
00:14:08 Here are some things that legislatures cannot do.
00:14:10 And that roster of individual rights is a place where the individual can exist without interference from the state.
00:14:20 Now, it is the courts now that are allowing those limits to be infringed in many cases.
00:14:27 Well, to me, it seems like the courts now want to allow the state to impose limits on individual rights.
00:14:37 Yes.
00:14:38 But also claim that there are positive rights. And I don't want to get into too academic of an argument here, but the charter and the Canadian tradition has always been that government is there, these things are there to protect you from government overreach.
00:14:55 And now it's, oh, no, you have a positive.
00:14:58 So those are negative rights.
00:14:59 And then you've got people arguing, oh, no, there's a positive right, which our Constitution and our charter do not grant.
00:15:05 So, you know, I have a right to affordable housing.
00:15:09 So that's a positive right.
00:15:11 That means the government has to give me affordable housing.
00:15:14 Whether I agree to, you know, but I want to live on the top of the mountain and you have to give me affordable housing there.
00:15:21 Right.
00:15:21 That doesn't wash in our system.
00:15:23 And yet that seems to be where we're going.
00:15:25 Well, it may be where we're going. We haven't actually arrived quite there yet, but we seem to be headed in that direction. And my take would be that the Charter began as what appears to be largely, in its most important sections anyway, largely a roster of negative rights, as you say, individual freedoms, situations in which the state is not allowed to interfere with you, and has slowly been, thanks to the court, Supreme Court especially,
00:15:50 has been being transformed into a kind of progressive blueprint
00:15:55 that justifies state action in certain circumstances.
00:15:58 So, for example, the court reinterpreted the freedom of association,
00:16:06 which is a negative right in Section 2D,
00:16:08 to include a positive right to a legislative regime
00:16:12 that allowed for collective bargaining and the right to strike.
00:16:14 It's a kind of positive right.
00:16:16 you will have encountered
00:16:19 decisions during the COVID
00:16:21 area of courts saying no
00:16:22 the charter requires or
00:16:25 at least enables the state
00:16:27 to interfere with you so as to protect
00:16:29 the rights of other people
00:16:30 to safety
00:16:32 a different kind of positive right
00:16:34 and the courts have made up all kinds of other things
00:16:37 as well like for example
00:16:38 the existence of a thing called charter
00:16:41 values
00:16:42 which are not listed in the charter, they don't exist
00:16:44 in the text of the charter
00:16:45 Okay, I'm not familiar with that. What are charter values?
00:16:48 Well, charter values apparently are progressive values like equity, like inclusion, like diversity.
00:16:57 It was the basis upon which the court has made several decisions like the denial of the Trinity Western Law School
00:17:04 because the law societies of BC and Ontario declined to give it approval
00:17:09 because it was reflecting values that those law societies had done approve of.
00:17:14 and the Supreme Court essentially said that those values are charter values
00:17:18 and therefore, you know, go right ahead to deny them.
00:17:21 This is all taking the power that the charter provides
00:17:25 and taking it, you know, in my books and in many other people's books
00:17:28 at just too far.
00:17:29 The court is now deciding what values,
00:17:34 what contested values in Canadian society should prevail
00:17:38 using the words of now-retired Justice Rosalie Abella.
00:17:41 I can't remember the name of the case. It was back in the 90s, but they reinterpreted the right of association for a college professor here in Ontario, I believe it was the Ontario College of Art and Design, was rather upset that his union, that he was required to be a member of, kept donating to the NDP.
00:18:03 And he said, well, the NDP doesn't represent me.
00:18:06 You know, the union's supposed to be there to represent me in the workplace, not to represent who they take my money and give it to.
00:18:13 And he said, you know, I have freedom of association, and you're associating me with the NDP, and I disagree with that.
00:18:18 And the Supreme Court said, oh, no, that's not what freedom of association means.
00:18:22 You don't have the right not to associate with people.
00:18:26 I mean, it's one of many cases, and the court, in my view, has only gotten progressively worse over the years.
00:18:32 Well, there are many, many of these cases, for sure. And they reveal an uncomfortable truth about the law, if you like. The law is not what it claims to be. The law is a mechanism, I like to say, for making political decisions in a way that looks like it has more legitimacy than it really should have.
00:18:54 It provides bells and whistles and process and the pretense that decisions that are made in courts are made on some kind of logical, principled, controlled, limited, determined by precedent way.
00:19:07 And if you study them carefully, a lot of them just don't hold up to that standard.
00:19:13 So this is a system of making political decisions.
00:19:16 And the more that the Supreme Court admits that they are making policy calls, the more that reality is becoming apparent.
00:19:24 But it still leaves us with a problem, which is, who do you want to have the final call?
00:19:29 A bunch of people who have been elected by the people or the mob sitting in legislatures, who often do things on very unprincipled basis.
00:19:39 Or the courts.
00:19:41 Politicians, of course.
00:19:42 Or the courts, who are supposed to be doing things on a more principled basis, but often that doesn't hold up to scrutiny.
00:19:49 So you've got these two bad choices, and both of those groups have shown that they will, in fact, place your rights aside when and if they think it's right to do so.
00:20:03 So the charter rights that you have written down in the document does not reflect the reality of what you actually have.
00:20:11 Those words are subject to interpretation, and those interpretations are not given by you.
00:20:16 They're given by these other people who have power.
00:20:19 OK, but if the Supreme Court hears a case where they agree that someone's charter rights have been violated, but violated in a way that they agree with, which means they will claim it's done in a free and justified in a free and democratic society, then they can abrogate those rights completely using Section 1 of the charter.
00:20:42 Correct.
00:20:42 There is no time limit on that abrogation. There is no appeal of that decision.
00:20:49 Whereas Section 33, if Doug Ford decides tomorrow that Ginger should be shot in the street and that's fine, well, then, you know, people can vote him out at the next election.
00:21:00 Yes.
00:21:01 You know, he can use Section 33 to justify that, but people can say, no, I quite like redheads and they shouldn't be shot in the street. 0.99
00:21:09 If the Supreme Court ruled that, it would just be the law of Canada.
00:21:14 That's correct.
00:21:15 That's correct, but this is part of the, if I can put it this way,
00:21:19 part of the essential myth of the way the law works, right?
00:21:21 So when a court gives you a decision, especially the Supreme Court,
00:21:28 all it's doing is discovering what the law is and has always been.
00:21:33 But when a legislature passes a new law,
00:21:36 it's passing a new law for political reasons, right?
00:21:39 So the legislature is sort of messy and dirty,
00:21:42 and we don't want to touch that.
00:21:43 But the court, you know, is a wise chamber of wise people who are not providing their own decisions but looking into the law and finding the answer.
00:21:54 Now, that's a myth.
00:21:57 But it is the essential myth upon which the system runs.
00:22:00 It gives the system legitimacy.
00:22:02 And if you lose those essential myths and the system loses its legitimacy, as I think it's starting to do, then the question is, all right, so what do you got now?
00:22:11 And this case on the Bill 21 situation is one of those cases where a little bit of legitimacy could be lost if the Supreme Court does what it has done before, which is to take the words of the document and say that it means something else.
00:22:31 because the words of Section 33 are pretty clear.
00:22:34 And the Supreme Court on a previous occasion essentially said
00:22:37 that Section 33 describes formal requirements, procedural requirements only,
00:22:43 and places no substantive limitations on its use.
00:22:47 And what the Attorney General of Canada is asking the court to do now
00:22:51 is to place more limits on what can be done with that section.
00:22:57 And so if they go ahead and –
00:23:00 Yeah.
00:23:00 And if people don't think that can happen, I just want to read out part of the Saskatchewan Federation of Labour decision from 2015.
00:23:10 This is Justice Rogali Abella, who wrote for the majority and overturned decades of precedent at the Supreme Court level, not just lower court levels, but the Supreme Court, which had heard case after case on whether there was a constitutional charter protected right to strike.
00:23:26 And they had always said no. And Justice Abella said in her decision, the right to strike is not merely derivative of collective bargaining. It is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.
00:23:44 it's that last sentence it seems to me okay so that's a feeling and then a constitutional
00:23:51 benediction she's saying she's giving it the blessing like she's the pope um that is not a
00:23:56 legal argument no but it has become the way the supreme court often proceeds as in you know folks
00:24:05 it's time we think we would prefer that this outcome you know be given its blessing and
00:24:11 Therefore, that's what we're going to do.
00:24:12 This is exactly the kind of loss of legitimacy that I'm describing.
00:24:17 And it's interesting that Abella, in that situation, actually put it into words.
00:24:22 They don't seem to be concerned that they are perceived to operate in this way.
00:24:29 This is the actual way they are operating.
00:24:31 They're saying it out loud.
00:24:33 But in a previous era, that would not have been admitted to, I don't think.
00:24:39 That decision was 11 years ago.
00:24:41 And people still think that you can pass back-to-work legislation.
00:24:45 They don't understand that when Doug Ford passed back-to-work legislation with the notwithstanding clause that was due to this, they haven't caught up.
00:24:54 And my worry is that the Supreme Court is about to deliver a decision in this case that will have far-reaching political implications.
00:25:03 We'll talk about that when we get back.
00:25:04 Quick break.
00:25:05 More after this.
00:25:06 there were so many missed opportunities to catch this before the devastating thing happened
00:25:14 a third of them we found literally in the phone book these people were not afraid they knew that
00:25:21 nobody was effectively hunting them they knew they had escaped justice that they were going to
00:25:26 die in their beds when i give talks at law schools is that the charter ultimately is empowering a 0.79
00:25:31 minority and it's empowering a minority that's a guild across the country and it's a fairly elite
00:25:35 Guild and the Guild as lawyers. Families who were split by referendum and brothers and sisters who
00:25:42 never talked to each other for years after the referendum because they were so angry at each
00:25:46 other because of the emotions on both sides. The reason he was assassinated was not because he was
00:25:52 trying to put a satellite into space but because the gun that he was creating had other applications
00:26:00 that made him and the gun very dangerous.
00:26:04 It's finally here.
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00:27:41 and the things about Canada that a lot of people would rather ignore.
00:27:45 But not you!
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00:27:55 So the case before the Supreme Court, as we mentioned off the top, is about Bill 21.
00:28:00 This is Quebec's secularism law.
00:28:03 But the arguments are really all about the notwithstanding clause
00:28:06 because Quebec invoked it to protect the law from charter challenge.
00:28:10 And so you've got the odd situation where you've got a bunch of interveners.
00:28:15 There's more than 50 interveners in this case.
00:28:17 And one of them is the Attorney General of Canada, which is arguing.
00:28:21 I want to read from part of their factum. It says,
00:28:24 The temporary character of the use of Section 33 confirms that it cannot be used to cause an irreparable impairment of the rights and freedoms guaranteed in Sections 2 or 7 to 15 of the Charter.
00:28:39 Such use would amount to indirectly amending the Constitution.
00:28:42 It follows that the courts must retain jurisdiction to review on a case-by-case basis whether the use of Section 33 violates this limit.
00:28:50 um bruce i'd like to ask you uh is there anything in section 33 that says you cannot use it over and
00:29:00 over again because my reading of it is it explicitly says you can use it over over again
00:29:05 and here's how yes yes absolutely that's what the text suggests it expires after five years but you
00:29:13 can renew it it doesn't say you can't you know why five years well i think that's because five years
00:29:19 is close to the lifetime of a democratically elected government.
00:29:25 And so if the people disapprove of your use of the clause,
00:29:29 then you will get a consequence for that at the ballot box.
00:29:33 But if people don't disapprove, then you'll be back in power and can do it again.
00:29:38 Yes, Subsection 4 of Section 33 says,
00:29:42 Parliament or the legislature of a province may reenact a declaration made under Subsection 1.
00:29:48 Yes.
00:29:50 Right.
00:29:50 And then do it again and do it again and do it again.
00:29:54 No caveats.
00:29:55 Yeah, correct.
00:29:56 That's right.
00:29:57 And yet the Supreme Court, or sorry, the federal government through the Attorney General is asking the Supreme Court to effectively, in my view, and tell me if I'm wrong, modify the Charter and the Constitution, which, if you were to do it in a political fashion, would take seven provinces with 50% of the population.
00:30:18 they want to do it with four of seven justices that is correct and i agree with the objection
00:30:25 to that however let's just keep in mind the supreme court has done this over and over again
00:30:31 already right so you can in what way well so for example um it took uh well we talked about section
00:30:40 2d already the freedom of association it's done sort of the same thing with section 15 1
00:30:46 of the Charter, done the same thing with, I think it's Section 121 of the original BNA Act,
00:30:53 which provided for free trade between the provinces. The Supreme Court says,
00:30:57 and actually, no, that's not what it means. You can point to lots of things over the course of a
00:31:02 long period of time where the Supreme Court has used its interpretive power to change the meaning
00:31:07 of the text of the Constitution. Now, let's keep in mind, on none of these occasions does the
00:31:13 actual wording of the document change like there's no formal amendment in that sense what the
00:31:18 supreme court has the power to do though and has done on numerous occasions is change the meaning
00:31:24 of the words in the text right and so yes i think i think this is objectionable but i think we ought
00:31:31 to be objecting to all of the instances in which the supreme court has done this over time
00:31:36 so the i've just mentioned renewal is one thing that the um the court is asking them to deal with
00:31:45 another is preemptively using this so using the notwithstanding clause before a court rules on
00:31:51 anything um the argument is it was never intended to be this way well if it was never intended to
00:31:59 be this way i would imagine that the very carefully worded language would say so i'm
00:32:05 guessing you're going to tell me that the Supreme Court feels and believes that they can't, I guess
00:32:10 for the Supreme Court, most importantly, feels that they can just amend that, just like you said
00:32:16 they could amend the renewal portion. Well, listen, they can, let's just call a spade a spade.
00:32:24 Supreme Court essentially can do anything it wants. And there's no place to appeal it. And
00:32:30 There's no place to remove the judges.
00:32:31 It's not a democratically elected body.
00:32:36 Unless something really extreme happens that would cause the court to lose its legitimacy and cause a constitutional crisis, the court can do anything it wants.
00:32:45 And so if it's merely a question of interpreting the words of the text in a way that some people might not approve, that's small potatoes.
00:32:55 but this could cause a constitutional crisis i mean um you know you you look at the the fact that
00:33:04 right now most polling would suggest the party quebecois would uh win the next quebec election
00:33:11 now that's the province that central canada and the laurentian elite uh that the court is made up
00:33:16 of really care about but alberta separatism could also be boosted by this ruling so we could have
00:33:22 two provinces where if the court rules and says no you can't use it preemptively you can't renew
00:33:29 it we're going to put guardrails and parameters around it yep well then like i i can see
00:33:37 separatist sentiment in those two provinces and perhaps saskatchewan as well yes going through
00:33:42 the roof well potentially yes i i'd like to kind of hope that it would but but these kinds of things
00:33:49 come up every once in a while, and
00:33:51 every time they do, you think, I wonder
00:33:54 if this will be the straw that breaks
00:33:56 the camel's back. Will this
00:33:58 be the thing that pushes it over the edge
00:34:00 to make people
00:34:01 either across the country or
00:34:04 in certain provinces, certain regions,
00:34:05 just not tolerate this anymore?
00:34:08 And it never happens.
00:34:09 It never happens. There are lots of
00:34:11 moments in the past years
00:34:13 where you could have said the same thing, as in
00:34:16 the court has now made
00:34:17 a decision that is intolerable
00:34:19 surely something is going to happen now.
00:34:23 And it never does.
00:34:24 So I'd like to think that you will be right.
00:34:27 I'd like to think that it will spur the pushback
00:34:31 and even the separatist sentiment in these various places.
00:34:35 But I'm a little bit of a skeptic.
00:34:38 Canadians do not seem to be oriented to objecting
00:34:41 to the wielding of authority of the people
00:34:45 who run their institutions.
00:34:47 I think of some of the crazy decisions over the last bunch of years, whether it's Bissonnette, which said the guy that committed the Quebec City mosque shooting, oh, it's cruel and unusual punishment to make him serve more than 25 years, so we're going to get rid of his consecutive sentences.
00:35:07 Or you look at all the mandatory minimums that they struck down, not based on the cases in front of them, but on what they call reasonable hypotheticals.
00:35:17 I would say that they're hypothetical, but not reasonable at all.
00:35:20 The child pornography laws recently struck down over the judge inventing a new case saying, well, what if an 18-year-old is sent nude photos of a 17-year-old girlfriend and shares that with another 18-year-old?
00:35:34 No prosecutor would, you know, charge them in that instance with child pornography, and yet they strike down laws meant to protect the most vulnerable based on, again, their feelings.
00:35:49 I believe that was Justice Sheila Martin of Alberta that wrote that one.
00:35:54 Absolute bonkers decision.
00:35:56 sure but the king the the real problem is though that the judges who are doing these things both
00:36:03 at the supreme court level but all through the system are not outliers these are not rogue
00:36:10 judges these are judges are are performing in the way that it's become accepted to perform
00:36:15 and so if you think well these these people have a judicial philosophy that is not in keeping with
00:36:23 the Canadian tradition of
00:36:25 restraint and precedent and
00:36:27 so on. I mean, I agree with that, but
00:36:29 that, this
00:36:31 judicial philosophy has become mainstream.
00:36:33 It is the conservative judges
00:36:35 who are now the
00:36:37 outliers. And so this gets me back to
00:36:39 more what I was saying about judicial culture, about
00:36:41 legal culture. The legal
00:36:43 profession in this country has become
00:36:45 a progressive institution.
00:36:47 It's all the way through. It's in the
00:36:49 law schools, it's in the Canadian
00:36:51 Bar Association, it's in the
00:36:53 the law society regulators you're in a law school are you an outlier oh oh i'm a barbarian
00:36:59 i know that having talked to some of your former students who are friends of mine
00:37:05 but so how do we fix that i mean in the united states there is an argument over originalism
00:37:12 here we seem to have everyone believing in living tree theory that
00:37:16 the constitution and the charter mean whatever you feel it means in that day
00:37:21 you know we like to think that we don't have a political judicial system in canada the way that
00:37:28 they do in the united states yes right i would argue that we do oh yeah in the united states
00:37:33 they're very open about it you're the judge is a liberal democrat or a conservative republican
00:37:38 in canada you are either part of the laurentian elite or you're as you put it a barbarian and 0.73
00:37:45 therefore not fit for the court and they'll try and chase you off of it or block you from getting
00:37:50 on it. C, Mr. Nadeau, among others. So how do we fix that without going to, you know, you've got to
00:37:59 elect a conservative government to get conservative judges and a liberal government to get liberal
00:38:03 judges. Are we going to get to the point where we are fighting over court appointments the way
00:38:07 the Americans do? Well, yes. And I must say, I agree with your assessment that it's not like,
00:38:13 it's not that the canadian system is not political it's it's that in the canadian system one side has
00:38:20 already won so you don't have the kind same kind of battles you have in the open in the american
00:38:27 system at least in the states you have you know these two competing perspectives or sides the
00:38:33 conservatives and the liberals and sitting on the supreme court and other courts throughout the
00:38:37 country that that is an open contest and debate in canada that and i think that's healthy i do too
00:38:44 but the thing is that in this in this country it's not that it's not political it's that it's
00:38:49 that the contest has been won already and they don't have to have that fight out in the open
00:38:54 because there's no fight to have except for the few outliers who are here and there um but but to
00:39:00 To try and reform the system will take an awful lot, much more than insisting that the words of the Constitution be honored.
00:39:10 I mean, that kind of appeal goes nowhere.
00:39:13 It's like tilting at windmills.
00:39:16 After the most recent federal election, I had opportunity to go and listen to a conservative strategist give his assessment of what happened.
00:39:25 And, of course, he was very unhappy to have lost the election.
00:39:28 but he was very happy with the numbers.
00:39:31 And he said, the 41% of the popular vote that we got
00:39:35 was the high watermark for conservative parties
00:39:39 in the modern era.
00:39:40 And I thought to myself sitting in my chair,
00:39:42 I thought, well, wait a minute, the high watermark,
00:39:46 what you're telling me is that you can't possibly aspire
00:39:50 to do better than 41%.
00:39:52 And that means that you have no hope of winning ever
00:39:57 unless the left splits the vote.
00:40:00 That means you are telling us
00:40:02 that we live in a country
00:40:05 where the voters vote progressive left socialists.
00:40:11 In other words, there is no situation
00:40:12 in which you can represent
00:40:14 the majority of voters in the country.
00:40:18 I think there's a bitter lesson
00:40:20 that people on the right
00:40:22 will not confront in this country,
00:40:24 which is you don't live in a conservative country.
00:40:27 You live in a socialist country.
00:40:29 The people think that way.
00:40:31 And if you are really going to try and figure out your way forward here,
00:40:34 you've got to confront that first and think very broadly
00:40:38 about how to change the culture of the place.
00:40:42 How much of the fact that the judicial system,
00:40:46 the appointees are all of one ideological viewpoint,
00:40:52 has to do with the rules that have been set up.
00:40:56 You know, I look at Premier Ford in Ontario.
00:41:00 Now, most of the really important judicial appointments are made at the federal level.
00:41:04 But Premier Ford in Ontario has said he wants more like-minded judges
00:41:08 and people lose their collectivist minds that he says that.
00:41:11 He doesn't want people who are repeat violent offenders being given bail the fourth time.
00:41:17 He wants them kept behind bars.
00:41:18 Oh, how dare you say that?
00:41:20 And yet liberals are very open about appointing people from their donor list, from their own party ranks, and then you've got these so-called systems where, oh no, it's nonpartisan, it's arm's length, and yet you look at all the rules and it's just designed to appoint like-minded people.
00:41:40 And that includes all the way up to the fact that at the Supreme Court, you can't get on anymore unless you're fluently bilingual.
00:41:48 Find me three competent judges who don't all share the same left-wing point of view in Alberta or Saskatchewan who are bilingual.
00:41:56 I can show you plenty of great lawyers, plenty of great judges from those areas who are not bilingual, would make great jurists.
00:42:03 and we've got fantastic translators.
00:42:06 And that was the way that we did it
00:42:07 for more than a century in Canada.
00:42:10 But now, oh no, you've got to follow these rules.
00:42:12 It's like it's all set up to make sure
00:42:15 that identity politics is at its core
00:42:17 and that the same core always holds power.
00:42:21 All true, all true.
00:42:23 But the reason that that is so
00:42:26 is that progressivism has prevailed.
00:42:30 This is now a progressive country.
00:42:33 Progressivism is legitimate.
00:42:35 Everything else is not.
00:42:36 The conservative viewpoint, according to, you know,
00:42:39 from within a progressive ideology, is not legitimate.
00:42:43 Of course, you appoint people to the bench who think like you.
00:42:49 That's the whole point of having the power to appoint.
00:42:52 Yes.
00:42:53 But if a conservative government does it, it's illegitimate.
00:42:56 Why?
00:42:57 Well, because they're not progressive.
00:42:59 That cannot be tolerated.
00:43:01 I don't think we accept the extent to which a particular ideology has prevailed in this country so as to determine what is legitimate and what is not.
00:43:15 To bring it back to Section 33, just so we can close out, you've said Section 1, the judge is deciding what is legitimate and what is not, is not great.
00:43:27 Section 33 is not great, and that we need a third way.
00:43:31 What would that third way be?
00:43:32 A third way would be an entirely different kind of constitution with a different architecture, which provides for a whole lot of different things.
00:43:43 So, for example, just to make this very brief, there is a default position in our constitution.
00:43:48 The default goes like this.
00:43:50 The state has the power to do anything.
00:43:53 It has unlimited subject matter jurisdiction.
00:43:55 I'm including the province and the feds and the legislature and the courts.
00:43:59 the whole, the state, all together.
00:44:01 And what do we do with that?
00:44:02 It's a default position, all-powerful,
00:44:05 and then we carve out exceptions.
00:44:08 All-powerful, except.
00:44:09 And the exceptions are, you know,
00:44:11 the charter rights, for example.
00:44:13 Okay?
00:44:13 Okay.
00:44:14 In a new constitution, what do you do?
00:44:16 You flip the default.
00:44:19 And the new default is,
00:44:20 the state can do nothing except.
00:44:24 And now in the constitution,
00:44:26 you list what the exceptions are,
00:44:28 that the state is allowed to do
00:44:30 because we want the state to do some things
00:44:31 like keep the peace and protect the country.
00:44:34 But right now we have a constitution
00:44:36 with an architecture that empowers
00:44:38 all our state institutions
00:44:40 to do what they're doing right now.
00:44:42 And in order to make that stop,
00:44:44 you need a different kind of constitution.
00:44:47 Well, Professor, the only way I can see you getting that
00:44:49 is if you can convince four or five judges
00:44:52 on the Supreme Court to give it to you
00:44:53 because the political system isn't set up for that.
00:44:58 That's correct.
00:44:58 That's right.
00:45:00 Thank you very much for the time today.
00:45:02 Oh, my pleasure, Brian.
00:45:03 Thanks for having me.
00:45:04 Full Comment is a post-media podcast.
00:45:06 My name is Brian Lilly, your host.
00:45:08 This episode was produced by Andre Proulx.
00:45:10 Theme music by Bryce Hall.
00:45:12 Kevin Libin is the executive producer.
00:45:14 Please make sure you hit subscribe, share this on social media, and tell your friends about us.
00:45:18 Thanks for listening.
00:45:19 Until next time, I'm Brian Lilly.
00:45:25 There were so many missed opportunities to catch this.
00:45:28 before the devastating thing happened.
00:45:32 A third of them we found literally in the phone book.
00:45:35 These people were not afraid.
00:45:37 They knew that nobody was effectively hunting them.
00:45:40 They knew they had escaped justice,
00:45:42 that they were going to die in their beds.
00:45:44 When I give talks at law schools,
00:45:45 it's that the charter ultimately is empowering a minority,
00:45:48 and it's empowering a minority that's a guild across the country,
00:45:51 and it's a fairly elite guild, and the guild is lawyers.
00:45:53 Families who were split by referendum
00:45:56 and brothers and sisters who never talked to each other for years after the referendum
00:46:01 because they were so angry at each other because of the emotions on both sides.
00:46:06 The reason he was assassinated was not because he was trying to put a satellite into space,
00:46:11 but because the gun that he was creating had other applications
00:46:17 that made him and the gun very dangerous.
00:46:21 It's finally here.
00:46:23 A new season of Canada Did What?
00:46:24 a post-media podcast that revisits the big Canadian political events you might think you remember
00:46:30 and tells you the real story you never knew.
00:46:33 I'm Tristan Hopper. The voices you just heard are from our brand new Season 2.
00:46:39 We will unpack some of the pivotal moments that helped define our country,
00:46:42 often without a vote, usually without a plan, and sometimes without anyone admitting what they've done.
00:46:49 We'll find out how Canada became a welcoming paradise
00:46:52 for untold numbers of Nazi war criminals after the Second World War.
00:46:56 We let them build monuments to their wartime exploits
00:46:59 and even ended up honoring a Nazi fighter in the House of Commons.
00:47:03 And I'm sorry to say that none of that happened by accident.
00:47:07 We'll bring you the little-known story of a troubled Canadian rocket scientist
00:47:11 who turned to a sinister life of selling giant guns to terrible people.
00:47:16 And if that sounds like a spy novel, it ends like one too.
00:47:19 You'll hear the behind-the-scenes story of Quebec's attempted secession from Canada,
00:47:24 and how very close we came to a political crisis that would have made Brexit look like a picnic.
00:47:30 You'll hear about how the much-celebrated Charter of Rights and Freedoms
00:47:34 turned into something its creators never wanted,
00:47:36 and how many of the most extravagant warnings about the document were all quickly proven true.
00:47:43 And you'll even hear about how authorities bungled multiple chances
00:47:46 to stop the deadliest terrorist attack in our country's history
00:47:49 and then proceeded to pretend it never happened.
00:47:53 These aren't dusty history lessons.
00:47:55 They're stories about power, ambition, madness,
00:47:57 and the things about Canada that a lot of people would rather ignore.
00:48:02 But not you!
00:48:03 You won't want to miss an episode.
00:48:05 Subscribe to make sure you get all of Season 2 starting March 2026
00:48:09 anywhere you get your podcasts.
00:48:12 You